Filed 6/13/22 In re D.P. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b) . This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re D.P. et al. , Person s Coming
Unde r the Juvenile Cou rt Law. B 314159

(Los Angeles County Super. Ct. No. 20CCJP01588A

- C ) LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

ARMANDO P.

, Defendant and Appellant ;

KARINA C.,

Respondent

. APPEAL from orders of the Superior Court of Los Angeles County, Tamara Hall, Judge. Affirmed in part and dismissed

in part.2 Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant. No appe arance for Respond ent Los Angeles County Department of Children and Family Services. Shaylah Padgett

- Weibel, under appointment by the Court of Appeal, for Respondent Karina C.

_________________________ Armando P., the father of 12

- year

- old D.P., nine

- yea r

- old
A.P. and six

- year

- old K.P., appeals the juvenile court’s order s terminating dependency jurisdiction and awarding sole physical
and legal custody to the children’s mother, Karina C. Armando
also seeks a remand to permit the juvenile court to modif y a September 2020 re straining order to allow him to contact Karina
to arrange visitation with the children

, as authorized by the juvenile custody order. We affirm the order terminating dependency jurisdiction and the court’s juvenile custody order.
We dism iss Armando’s requ est to remand the cause for
modifi cation of the restraining order as not within our jurisdict i on in this appeal

. FACTUAL AND PROCEDURAL BACKGROUND

1. The Sustained Petition and Disposition Orders The Los Angeles County Department of Chil dren and Family Se rvices filed a petition on behalf of D.P., A.P. and K.P. on March 20, 2020 pursuant to Welfare and Institutions Code section 300, subdivisions (a) (nonaccidental infliction of serious physical harm), (b) (failure to protect) and (j) (sibl ing abuse). 1 On
S eptember 9, 2020 the juvenile court sustained the petition,

1 Statutory references are to this code unless otherwise stated.3

finding true allegations under subdivisions (a) and (b) that Armando and Karina had a history of domestic violence in the presence of the children ; Armando had struck Karina with his fist, slapped her face and pushed her to the ground ; and Karina failed to protect the children by allowing Armando to reside in
the home and have unlimited access to them. The court also found true allegations under subdivisions (b) and (j) that
Arma ndo had physically abused each of the three children and Karina had failed to protect them from that abuse. D.P., A.P. and K.P. were declared dependent children of the court, removed from Armando’s care and custody and released to Karina under the supervi sion of the Depart ment. Family maintenance and family preservation services were ordered for Karina. Enhancement services were ordered for Armando, including a 52

- week domestic violence program and individual counseling with a Department

- approved therapi st to address

ange r management and other case issues. Armando’s visitation with the children was to be monitored and to take place outside the family home. The court authorized the Department to
liberalize visitation and directed it to provide Armando wi th a
written visit ation schedule.

2. The Restraining Order The week before the Department filed the section 300 petition, Karina obtained a temporary restraining order protecting her and the children from Armando. The order required Armando to move out of the family resi dence and to stay away from Karina, the children, their home, Karina’s workplace and the children’s school or child care. The juvenile court reissued the temporary restraining order on May 19, 2020.4 On September 11, 2020, two days after the jurisdiction and disposition hearings, the court heard Karina’s request for a permanent restraining order. The court issued a three

- year restraining order, which protected only Karina, not the children. The order prohibited Armando from contacting K arina and required h im to stay at least 100 yards away from her, her home, workplace and vehicle. The box on the restraining order form that would except contact for the purpose of visitation with the
children was not checked.

3. The Section 364 Review Hearings, Terminat ion of Jurisdiction and the Court’s Juvenile Custody Order At the end of October 2020 the Department approved
unmonitored visitation for Armando , which began on November 1
and took place on Sundays between 10 a.m. and 6 p.m. The vi sits

w ere held at a pate rnal uncle’s home or outdoors. Reports of the visits were positive.
In its February 23, 2021 report for the initial section 364 review hearing on March 10 , 2021, the Department recommended the court terminate jurisdiction with a custody order awarding
sol e physical custody to Karina

, joint legal custody and
unmonitored visitation for Armando . In a last minute information report filed March 9, 2021, however

, the Department stated Armando had not provided an update on his enrollment in
ind ividual counseling or the 52

- week domestic violence classes for perpetrators ordered by the court. Because of Armando’s noncompliance with court

- ordered services , the Department changed its recommendation and requested the court limit
Armando to monitored visitation

. At t he hearing the Department
reiterated its recommendation for monitored visitation based on the court’s findings of domestic violence and physical abuse of the5

children and the fact Armando, at most, had only recently started his programs.
The court indica ted its tentative view was to award Karina sole physical and legal custody of the children

, an outcome Karina supported

. Armando and the children’s counsel asked
that visitation remain unmonitored. The court expressed concern
about the inconsistency in t he Department’s position on visitation, allowing it to be unmonitored before Armando even began his programs but then recommending it return to monitored upon termination of dependency jurisdiction. Counsel for the Department said s he wo ul d need to speak to h er client to explain its rationale for the change. The court continued the hearing to April 5, 2021. The Department filed a further last minute information
report for the court on April 1, 2021. The report stated Armando had provide d proof of his enr ollment in March 2021 in both individual therapy and a domestic violence group for perpetrators and Karina had told a Department social worker she had no safety concerns when the children visit ed with Armando. The children also said they were not concerne d for their safety and
had asked for additional visits with Armando. The social worker discussed with both Karina and Armando the possibility of keeping the case open to allow for Armando to make continued progress, and both parents appr oved the concept. The Department, therefore, recommended that the court continue family maintenance for Karina and enhancement services for
Armando for an additional three months and also recommended
that Armando’s visitation remain unmonitored.
At the o utset of the conti nued section 364 hearing on April 5, 2021, t he court again stated its tentative view was to6

grant sole legal custody to Karina, explaining, “This is domestic violence. Father has not completed his domestic violence. And per the law, joi nt legal is not an option.” The Department repeated the recommendation from its April 1 report, suggesting the case remain open for another three months, noting Karina and Armando consented to that plan. The court agreed, found continued supervision was necessary and sche duled another section 364 review hearing for July 6, 2021. In its report for the July 6, 2021 section 364 review hearing, the Department recommended the court terminate dependency jurisdiction and enter a juvenile custody order awarding sole physical cust ody to Karina and joint legal custody
to Karina and Armando with unmonitored visitation for
Armando. As to visitation, the report stated, “The children have expressed feeling safe and happy when visiting with their father
and would like to continue with t he current schedule.” At the hearing Armando’s counsel asked the court to keep the case open to allow Armando to make further progress with the goal of a joint physical and legal custody order at
termination

. Karina and children’s coun sel asked th e cour t to
terminate jurisdiction with the joint legal/sole physical custody
order recommended by the Department

. The court, finding Karina was in full compliance with her case plan and there were no safety issues concerning the children, te rminated its juris diction and stated it would enter a custody order awarding sole physical and legal custody of the
three children to Karina with unmonitored visitation for
Armando. The juvenile custody order entered July 13, 2021 provided
Karina with so le physical and le gal custody of the children and7

unmonitored visitation for Armando. The order stated, “Parents are to agree to visitation schedule.” The order attached Armando’s case plan and explained, “Parents may modify the custody order in family c ourt upon Father’s substantial completion of said case plan.” Armando filed a timely notice of appeal on July 20, 2021.

DISCUSSION

1. The Juvenile Court Did Not Abuse Its Discretion in Terminating Jurisdiction and Ordering Sole Legal and Physical Custod

y to Karina

a. Go verning law and standard of review

Section 364, subdivision (a), requires the juvenile court to
schedule a review hearing at least every six months for a dependent child who has not been removed from the physical custody of his or her par ent or guardian. At the hearing dependency jurisdiction must be terminated unless the conditions
that created the need for supervision still exist or are likely to
exist if supervision is discontinued: “After hearing any evidence presented by the social worker, the parent
, the guardian, or the child, the court shall determine whether continued supervision is

necessary. The court shall terminate its jurisdiction unless the
social worker or his or her department establishes by a preponderance of evidence t hat the conditions still exist which
would justify initial assumption of jurisdiction under Section 300,

or that those conditions are likely to exist if supervision is
withdrawn.” (§ 364, subd. (c); see In re T.S. (2020)

52 Cal.App.5th 503, 512

- 513; In re Shannon M. (2013)

221 Cal.App.4th 282, 290 [ section 364, subd ivision (c), establishes

a “statutory presumption in favor of terminating jurisdiction and8

returning the children to the parents ’ care without court supervision”].)
“The juvenile court makes th is determination b ased on the totality of the evidence before it

. ” ( In re Armando L. (2016)

1 Cal.App.5th 606, 615.) We review the court’s decision to
terminate dependency jurisdiction for abuse of discretion. ( In re Destiny D. (2017) 15 Cal.App.5th 197

, 211

- 212; Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300 .) “‘“ The appropriate test for abuse of discretion is whether the trial court
exceeded the bounds of reason. ”’” ( In re Stephanie M. (19 9 4)

7 Cal.4th 295, 318

- 319.) When the juvenile c ourt terminates it s jurisdiction over a child who has been declared a dependent child of the court, the court, “ on its own motion, may issue

. . . an order determining the custody of, or visitation with, the child. ” ( § 362.4, subd. (a) ; see In re T.S.

, su

pra , 52 Cal.App.5t h at p. 513 .) 2 Section 362.4 specifies that order “shall continue until modified or terminated by a subsequent order of the superior court” and directs the order
be filed in a pending family law proceeding ( § 362.4, subd. (b)) or, if the re is none, as par t of a new family court file ( § 362.4,
subd. (c))

. When making a custody determination under section 362.4,

“ ‘ the court ’ s focus and primary consideration must always be the
best interests of the child. ’ ” ( In re T.S.

, supra , 52 Cal.App. 5th at

2 Once a child has been adjudge d a dependent of t he juvenile court pursuant to section 300, “any issues regarding custodial rights between his or her parents shall be determined solely by the juvenile court . . . so long as the child remains a dependent of the juvenile court.” (§ 302, subd. (c); see In re Anna T. (2 020)
55 Cal.App.5th 870, 876.)9

p. 513; acc ord, In re Nicholas H. (2003) 112 Cal.App.4th 251, 268 ; In re John W. (1996) 41 Cal.App.4th 961, 965 [“it is the best interests of the child, in the context of the peculiar facts of the case before the court, which are paramount”]; see In re Chantal S. (19 96) 13 Cal.4th 196, 206 .) We review a juvenile court custody order , like the order terminating jurisdiction, for abuse of discretion. ( In re C.W. (2019) 33 Cal.App.5th 835, 863; In re M.R. (2017) 7 Cal.App.5th 886, 902; see In re T.H. (2 010) 190 Cal.App.4 th 1119, 1124.) We “may not disturb the order unless the court ‘“‘exceeded the limits of legal discretion by making an arbitrary, capricious

, or patently absurd determination.’”’” ( Bridget A. v. Superior Court

, supra , 148 Cal.App.4th at pp. 300

- 301.)

b. Termination of jurisdiction was appropriate in light of Karina’s successful completion of her case plan Disregarding the statutory mandate that dependency jurisdiction must be terminated unless the social worker or the child protective agency establishes that continued court supervision is necessary to protect the children, as well as the
abuse

- of

- discretion standard of review for an order terminating dependency jurisdiction, Armando argues the court abused its discretion in terminating jurisdiction becau se keeping the case open would have allowed him to complete his programs, making joint custody orders possible. Based on ample evidence set forth in the Department’s
reports

— unchallenged by Armando in the juvenile court or on appeal

— the c ourt found Karina, whose sole offense was failing to protect the children and herself from Armando’s repeated acts of violence, had fully complied with her case plan and the children were safe in Karina’s care. Particularly with a three

- year10

restraining o rder in place, the re was, as the court ruled, no reason to keep the case open. 3
Armando also contends it was an abuse of discretion to terminate dependency jurisdiction because of the apparent inconsistency between the no

- contact provision in the Septembe r 2020 restraining order and the direction in the juvenile custody
order for Karina and Armando to agree to his visitation schedule. Whatever else may be said about this purported issue, which we
address in section 2, it has absolutely nothing to do with the
children’s saf

ety in Karina’s care and the absence of any continuing need for the family’s involvement in the dependency
system.

c. The juvenile court custody award was well within the

juvenile court’s broad discretion Emphasizing the juvenile court’ s statement at the April 5,

202 1 section 364 hearing that, “per the law,” joint legal custody was not an option in a case involving domestic violence, Armando argues the court committed legal error when it awarded sole legal custody of the children to Kari na on July 6, 2021 by implicitly relying on Family Code section 3044, which creates “a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic
violence is detrimental to the best i nterest of the chi ld.” As Armando explains, this Family Code presumption is not applicable to custody decisions made in dependency proceedings,

3 Terminating dependency jurisdiction did not preclude Armando from continuing with his domestic violence program or completing other aspects of the case plan ordered by the juvenile court. To the contrary, a s discussed, the court encouraged Armando to complete his case plan and to seek a revised custody order from the family court once he had done so.11

which are governed by the Welfare and Institutions Code: “‘[T]he juvenile court, which has been intimately inv olved in the
prote ction of the child, is best situated to make custody
determinations based on the best interests of the child without any preferences or presumptions.’” ( In re C.M. (2019)

38 Cal.App.5th 101, 110 , italics omitted .)
Even if the court’s und efined reference t o “the law” on April 5, 2021 was to Family Code section 3044, however, the court made no similar suggestion it was applying an improper presumption when it awarded sole legal custody to Karina on July 6, 2021. It is that ruling, not a st ate ment of tentati ve views
made three months earlier, that is before us. “I n the absence of evidence to the contrary, we presume that the court ‘ knows and applies the correct statutory and case law. ’” ( People v. Thomas (2011) 52 Cal.4th 336, 361 ; accord, McDermott Will & Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083, 1103 [“[w]e presume the trial court knew and properly applied the law absent evidence to the contrary”]; Keep Our Mountains Quiet v. County of Santa Clara (2015) 236 Cal.App.4th 714, 741 [ “‘ [i]t is a basic presumption indulged in by reviewing courts that the trial court is presumed to have known and applied the correct statutory and
case law in the exercise of its official duties ’” ].) There is no such
evidence here.
Armando also cont ends the court abu sed its discretion in awarding sole legal custody to Karina because he had participated in court

- ordered services; complied with the no

contact restraining order; and not missed any visits with his children, who reported they felt safe wh en with him. Whil e it may well have been within the court’s broad discretion to order joint legal custody in this case, as the Department had12

recommended

, it was not arbitrary or irrational for the court to
conclude it was in the best interest of the chil dren to award sole physical and legal custody to Karina

. As the court explained when it made its ruling on July 6, 2021, the significance of the award of sole legal custody was that
Karina did not “have to ask, inquire, give t he input of the father
when making any parenta l decision regarding your children.” Given the still early stage of Armando’s efforts to address the domestic violence that gave rise to the dependency proceedings
and the existence of a no

- contact restraining order, which will
remain in effect at least t hrough September 2023, permitting Karina to make all necessary decisions affecting the children’s welfare without first contacting Armando did not exceed the
bounds of reason. (See In re Stephanie M.

, supra , 7 C al.4th at

pp. 318

- 319 .)

2. Armando’s Reques t for Modification of the September 2020 Restraining Order Is Not Properly Before Us

Armando contends the no

- contact provision in the September 2020 restraining order prohibiting him from speaking to Karina is inconsistent with the juve nile custody order that directs Karina and Armando to agree on a schedule for
Armando’s unmonitored visitation with the children. He contends, even if we affirm the juvenile custody order, the cause should be remanded to allow the juvenile court to modify the restraining o rder to allow peaceful contact between Karina and Armando to arrange for visitation. This issue, whatever its merit, is not properly before us

. Even if the express terms of the custody order directing the parties to agree to a visitation schedule did not impliedly limit
the no

- contact provision of the restraining order, Armando did13

not ask the juvenile court to modify the restraining order during the July 6, 2021 hearing at which the court terminated dependency jurisdiction and described the custody order it would
enter, the subject s of this appeal; and the court, appropriately, did not make any ruling on a request not made

. (Cf. People v.
Beames (2007) 40 Cal.4th 907, 923 [trial court did not err in failing to grant a continuance in the absence of a reque st].) The time to appeal the terms of the September 11, 2020 restraining order ha d long since passed when Armando filed his notice of appeal in this case on July 20, 2021

. (See Cal. Rules of Court, rule 8.406(a)(1) [notice of appeal mu st be filed within

60 days after entry of the making of the order being appealed].) Armando’s proper recourse is to ask the family court, which now has jurisdiction over custody and visitation issues, to make any necessary modifications in the orders rela ting to those matt ers

. (See § 362.4, subd. (b).)14 DISPOSITION The orders terminating jurisdiction and awarding sole legal and physical custody of the children to Karina, with unmonitored visitation for Armando, are affirmed. The request to remand to
allo w modification of the September 11, 2020 restraining order is
dismissed as an untimely appeal

.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.